Experts Opinion and its admissibility and relevancy - Law of Evidence
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called in our day to day practice as expert’s opinion.Author Name: debaditya_roy.1983
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called in our day to day practice as expert’s opinion.
Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called in our day to day practice as expert’s opinion. These provisions are exceptional in nature to the general rule that evidence is to be given of the facts only which are within the knowledge of a witness. The exception is based on the principle that the court can’t form opinion on the matters, which are technically complicated and professionally sophisticated, without assistance of the persons who have acquired special knowledge and skill on those matters. Conditions for admitting an expert opinion are following:-
a) That the dispute can’t be resolved without expert opinion and
b) That the witness expressing the opinion is really an expert.
Who is an expert?
The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence Act that an ‘Expert’ means a person who has special knowledge, skill or experience in any of the following----
1) foreign law,
2) science
3) art
4) handwriting or
5) finger impression
and such knowledge has been gathered by him—
a) by practice,
b) observation or
c) proper studies.
For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint expert etc.
According to Sec.45, the definition of an expert is confined only to the five subjects or fields as mentioned above. But practically there are some more subjects or fields on which court may seek opinion an expert.
An expert witness is one who has devoted time and study to a special branch of learning and thus he is specially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the court to come to a satisfactory conclusion.
Duty of the expert:-
a) An expert is not a witness of fact.
b)His evidence is of advisory character.
c) An expert deposes and does not decide.
d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by application of the criteria to the facts proved by the evidence.
Value of expert opinion:-
The Expert evidence has two aspects ---
a) Data evidence [it can’t be rejected if it is inconsistent to oral evidence]
b) Opinion evidence [it is only an inference drawn from the data and it would not get precedence over the direct eye-witness testimony unless the inconsistency between the two is so great as to falsify the oral evidence] --[Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP)]
Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is a rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence.
It is not safe to rely upon this type of evidence without seeking independent and reliable corroboration -- [S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)]
Difference between evidence of an expert and evidence of an ordinary witness:-
| Evidence of an expert | Evidence of an ordinary witness |
| 1. Expert gives his opinion regarding handwriting, finger impression, nature of injury etc. 2. It is advisory in character. 3. Court can’t pass an order of conviction on the basis of expert opinion, as because it is not conclusive. 4. Expert gives his opinion on the basis of his experience, special knowledge or skill in the field. |
1. An ordinary witness states the fact relating to the incident. 2. Witness states the facts. Opinion of a witness is not admissible. 3. Court may pass an order of conviction on the basis of evidence of ocular witness (eye witness). 4. A witness gives actual facts connected with the incident what he had seen or heard or perceived. |
| Section/Title | Provision | Illustration/Example |
| Sec.45:- Relevancy of opinion of experts | If the court has to form an opinion upon- a) Foreign law, b) Science, c) Art, d) Identity of handwriting or e) Finger impression the opinion of the persons who are specially skilled in the above subject or fields are relevant. The expert opinion is only corroborative evidence. It must not be the sole basis for conclusive proof. The expert witness must be subjected to cross-examination in the court. Mere submission of opinion by an expert through any certificate or any other document is not sufficient. |
1) Question arises whether A, at the time of committing the offence, was incapable to know the nature of his act or that he was doing what was wrong or contrary to law because of unsoundness of mind. The opinion of the experts upon the points are relevant--- a) Whether the symptom exhibited by A commonly show unsoundness of mind and b) Whether such unsoundness of mind usually renders the person incapable to know the nature of his act or to know what he does is wrong or contrary to law. 2) The question is whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. Opinion of experts on the question whether the two documents were written by the same person or by different persons, are relevant. |
Considering the provisions of Indian Evidence Act, judicial precedents and our day to day practice it may be submitted that the following kinds of expert opinion may be relevant:-
1) Foreign law:-
Foreign law can be proved –
a) by the evidence of a person specially skilled in it and
b) by direct reference to the books printed or published under the authority of the foreign government.
2) Science or art:-
The Science or art includes all subjects on which a course of special study or experience is necessary to the formation of an opinion. “Science” or “art” is not limited to higher science or fine art, but it has its original sense of handicraft, trade, profession and skill in work which has been carried beyond the sphere of the common pursuits of life into that of the artistic and scientific action.
The following matters are included in the ‘science’ and art and the expert opinion of these matters are relevant:-
Medical opinion:-
The value of Medical evidence is only corroborative. A doctor acquires special knowledge of medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or surgeon may be admitted in evidence to show--
a) Physical condition of the a person,
b) Age of a person
c) Cause of death of a person
d) Nature and effect of the disease or injuries on body or mind
e) Manner or instrument by which such injuries was caused
f) Time at which the injury or wounds have been caused.
g) Whether the injury or wounds are fatal in nature
h) Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
i) Probable future consequences of an injury etc.
When there is a conflict between the medical evidence and ocular evidence, oral evidence of an eye witness has to get primacy as medical evidence is basically opinionative. Where the direct evidence is not supported by the expert evidence, the evidence is wanting in the most material part of the prosecution case and therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with medical evidence, it is the most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained, it is sufficient to discredit the evidence as well as the entire case. [Mani Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242]
Where the opinion of one medical witness is contradicted by another and both experts are equally competent to form an opinion, the court will accept the opinion of that expert which supports the direct evidence in the case. [Piara Singh v. State of Punjab AIR 1977 SC 2274]
3) Handwriting:-
· Like other expert opinion, the opinion of handwriting expert is advisory in nature. The expert can compare disputed handwriting with the admitted handwriting and give his opinion whether one person is the author of both the handwriting.
· The court shall exercise great care and caution at the time of determining the genuineness of handwriting. A handwriting expert can certify only probability and 100% certainty. On the question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it is not conclusive and handwriting of a person can be proved by other means also.
· The following are the different modes of proving handwriting:-
i) A person who wrote the document can prove it. (Sec.47)
ii) A person who saw someone writing or signing a document can prove it (Sec.47)
iii) A person who is acquainted with the handwriting by receiving the documents purported to have been written by the party in reply to his communication or in ordinary course of business, can prove the documents (Sec.47)
iv) The court can form opinion by comparing disputed handwriting with the admitted handwriting. (Sec.73)
v) The person against whom the document is tendered can admit the handwriting. (Sec.21)
vi) The expert can compare disputed handwriting with admitted handwriting and thereby prove or disprove whether the documents were written by the same or different persons. (Sec.45)
4) Fingerprint expert:-
Expert opinion on fingerprints has the same value as the opinion of any other expert. The court will not take opinion of fingerprint expert as conclusive proof but must examine his evidence in the light of surrounding circumstances in order to satisfy itself about the guilt of the accused in a criminal case.
5) Ballistic expert:-
A ballistic expert may trace a bullet or cartridge to a particular weapon from which it was discharged. Forensic ballistics may also furnish opinion about the distance from which a shot was fired and the time when the weapon was last used.
6) Evidence of tracking dogs:-
Trained dogs are used for detection of crime. The trainer of tracking dogs can give evidence about the behavior of the dog. The evidence of the tracker dog is also relevant U/s-45.
In Abdul Razak V. State of Maharashtra (AIR 1970 SC 283) question arises before the Supreme Court whether the evidence of dog tracking is admissible in evidence and if so, whether this evidence will be treated at par with the evidence of scientific experts. In this case, Pune Express was derailed near Miraj Railway Station on 10th Oct.,1966. Sabotage was suspected. The removal of fishplates was found to be the cause of derailment and accident. The police dog was brought into service, taken to the scene of crime. After smelling the articles near the affected joint, the dog ran towards embankment where one fishplate was lying, then the dog smelt it and went to a nearby shanty and pounced upon the accused who was a gang man at Miraj Railway station.
The Supreme Court held that evidence of the trainer of tracking dog is relevant and admissible in evidence, but the evidence can’t be treated at par with the evidence of scientific experts analyzing blood or chemicals. The reactions of blood and chemicals can’t be equated with the behavior of dog which is an intelligent animal with many thought processes similar to the thought processes of human beings. Whenever thought process is involved there is risk of error and deception. The law is made clear by the Supreme Court by enunciating the principle thatthe evidence of dog tracking is admissible, but not ordinarily of much weight and not at par with the evidence of scientific experts.
Apart from the above fields, there are chemical analyst, explosive experts, mechanical experts, interpreter, patent expert, hair expert etc. whose opinion is admissible in evidence.
Admissibility of expert opinion:-
Expert opinion becomes admissible only when the expert is examined as a witness in the court. The report of an expert is not admissible unless the expert gives reasons for forming the opinion and his evidence is tested by cross-examination by the adverse party. But in order to curtail the delay and expenses involved in securing assistance of experts, the law has dispensed with examination of some scientific experts.
For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-
a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
b) The Chief Controller of explosives
c) The Director of Fingerprint Bureau
d) The Director of Haffkein Institute, Bombay
e) The Director, Dy. Director or Asstt. Director of Central and State Forensic Science Laboratory.
f) The Serologist to the Govt.
g) Any other Govt. Scientific Experts specified by notification of the Central Govt.
The report of any of the above Govt. Scientific Experts is admissible in evidence in any inquiry, trial or other proceeding and the court may, if it thinks fit, summon and examine any of these experts. But his personal appearance in the court for examination as witnesses may be exempted unless the court expressly directs him to appear personally. He may depute any responsible officer to attend the court who is working with him and conversant with the facts of the case and can depose in the court satisfactorily on his behalf.
Can an Expert suo moto examine and furnish his opinion?
No, an expert can’t initiate examination or analysis and furnish his opinion unless the Investigating Officer has sought his opinion in compliance with the formal procedure. An expert can’t do anything suo moto in regard to analysis or examination and formation of his opinion.
Investigating officer and expert opinion:-
The investigation officer should seek opinion from experts or specially skilled person to form his own opinion whether the materials collected during the course of investigation is actually establishes the link between the crime, the victim and the criminals. The investigating officer shall seek the assistance of an expert whenever he feels necessary for establishing any fact related to the fact in issue.
Procedure of forwarding exhibits to experts:-
When forwarding the exhibits to the experts certain procedure and formalities must be followed by the I.O. to dispatch packed exhibits or physical evidence to experts. It ensures identity and continuity and above all question of integrity of such exhibits. The I.O. shall follow the following procedure for forwarding the exhibits to the experts:-
1) Exhibits are sent to experts through the concerned court. A forwarding report shall be prepared by the I.O. in the prescribed format where available.
2) A certificate from the competent authority concern (C.M.M./C.J.M./A.C.J.M. as the case may be) has to be received in the line that “Certified that the Director, Forensic Science Laboratory, has the authority to examine the exhibits sent to him in connection with the case of State vs. …………..(name of the accused) U/s-………(provision of I.P.C. or any other law) and if necessary, to make them to pieces or remove portions for the purpose of the said examination.”
3) The same seal (wax) shall be used by the I.O. on the forwarding report as affixed on the forwarding exhibits.
4) The specimen seal shall be on sealing wax and not in the ink.
5) A copy of label (carbon copy) of each exhibit shall accompany the report.
6) The forwarding report shall be prepared in quadruplicate (two for expert, one for case diary and one for the court’s record) and shall be sent to the expert separately in a sealed cover.
7) The exhibit should always be sent to the expert through police messenger.
8) The IO. should make specific question that may establish the links between crime, victim and criminals. The questions should be formulated with some objectivity towards establishing such links between one another.
Format for forwarding the physical evidence to C.F.S.L/F.S.L.:-
Forwarding note
Case No.:-
State vs. …………….(name of the accused)
Under section—
Nature of crime:--
……………………………………………………………………….
(this should cover nature of the charge, brief history and relevant details)
List of exhibits sent for examination:--
………………………………………………………………………….
(exact place from where the exhibits were collected)
Nature of examination required:--
…………………………………………………………………………..
(including any information which will assist the examination)
Particulars of person in custody, if any :--
………………………………………………………………………….
……………………………………….
Signature of the Investigating Officer
Specimen seal impression
Memo No………………
Forwarded to the Director, Central Forensic Science Laboratory/State Forensic Science Laboratory at……………….
………………………………………………..
Signature & designation of the forwarding officer
CERTIFICATE
CERTIFIED that the Director, Central/State Forensic Science Laboratory at ……………….. has the authority to examine the exhibits sent to him in connection with Case No………..dated…..U/s-………… and if necessary, to take them to pieces or remove portions for the purpose of the said examination.
Date…………………..
Place…………………. …….…………………………
Signature & Designation of Forwarding Authority
(CJM/CMM/ACJM)
The discussion or analysis as to the admissibility and relevancy of opinion of an expert under the law of evidence can’t be complete without analyzing or interpreting the statutory provisions (Sec.45 to Sec.51) of Indian Evidence Act. Hence the said provisions are discussed herein below.
| Section/Title | Provision | Illustration/Example |
| Sec.45A:-Opinion of Examiner of Electronic Evidence | In a proceeding when the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner or Electronic Evidence referred to in Sec.79A of I.T.Act, 2000 is a relevant fact. The examiner of electronic record is also treated as an expert. |
a) Expert opinion in respect of a particular hardware or software in issue are relevant. b) The copyright of a computer programme of the plaintiff is infringed. The plaintiff shows that there is chain of similarities between his programme and defendant’s programme. The defendant replied that the area of the alleged similarity are mere coincidence and generally this path is used by many programmers in such circumstances. Here an appropriately qualified expert can give evidence about the nature of the routine and code in question and how they are derived by the programmers. |
| Section/Title | Provision | Illustration/Example |
| Sec.46:- Facts bearing upon the opinion of experts | Facts not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. | The question arises whether A died of strychnine poisoning. Experts gives their opinion as to the symptoms of such poisoning and the A’s death was caused thereby. The experts may support such opinion by proof that other persons who were admittedly poisoned by strychnine had exhibited similar symptoms to A’s. On the contrary, some other experts opine that A had died from ordinary tetanus, they may prove that other persons who admittedly died from the ordinary tetanus had exhibited the same symptoms like A’s. |
| Sec.47:- Relevancy of Opinion as to handwriting | Ø This provision recognizes the opinion of non-handwriting expert. Ø When the court has to form an opinion as to handwriting of a person, the opinion of a person who is acquainted with the handwriting of the former person is admissible in evidence. Ø A person can be acquainted with the handwriting of any person in the following cases:- a) When he has seen the person whose handwriting is in question, write. b) When in answer to the document written by himself (the person acquainted) or under his authority and addressed to the said person, he has received any document purporting to be written by the said person. c) When in ordinary course of business documents purporting to be written by the said person have been habitually submitted to him (person acquainted). |
a) The question is whether a letter is in the handwriting of A, a merchant in London. B is a merchant at Calcutta. B has written letters to A and in response he received some letters from A purporting to be written by A. C is the clerk of B. His duty is to examine and keep all correspondence in files on behalf of B. Accordingly all the letters purporting to be written and sent by A to B has been examined by C and kept by C in the files. Opinion of B or C on the question whether the letter is in the handwriting of A, are relevant. Here it is immaterial that B or C has never seen A write. b)A, a record keeper, has to file papers sent to him in the course of his official duty. He is competent to testify to the handwriting of a person whose papers are so filed. |
Difference between Sec.45 & Sec.47:-
|
Sec.45 |
Sec.47 |
|
a) Only opinion of handwriting expert is relevant. |
a) Opinion of non-handwriting expert is relevant |
| Section/Title | Provision | Illustration/Example |
| Sec.47A:- Relevancy of Opinion as to electronic signature | When the court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying authority which has issued the Electronic Signature Certificate, is relevant. | The question arises whether an electronic signature is of A. The certifying authority which has issued the electronic signature opines that A is not the person who has applied or approached for getting an electronic signature. Thus A is not the owner of the electronic signature in question. It belongs to someone else. The opinion of Certifying authority may be accepted by the court. |
| Sec.48:- Relevancy of opinion as to existence of right or custom | When the court has to form an opinion as to the existence of any general custom or right, the opinion of the persons who are in a position to know about its existence, are relevant. Explanation:- The expression ‘general custom or right’ includes customs or rights common to any considerable class of persons. Private rights are excluded from the operation of this Section. Here the word “general” is equivalent to the term ‘public’. |
A tribal or family custom excluding a son or brother from inheritance may be proved by general evidence of the members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy. |
| Sec.49:- Relevancy of opinion as to usages, tenets etc. | 1)When the court has to form an opinion as to ---- a) Usages of any body of men of family [usages includes any practice, tradition or custom of trade, business, agriculture, family etc.] b) Tenets of any body of men or family [opinion, principle or doctrine held or maintained by a body of men, it applies to religion, politics science etc.] c) Constitution and government of religious or charitable foundation d) Meaning of words or terms used in a particular district or by a particular classes of people 2)Opinion of persons who have special means of knowledge as to the above matters, are relevant. |
A, the sister of B, claims to inherit the self-acquired property of B under a special custom. General evidence as to existence of such custom by the members of the family who would naturally be cognizant of its existence and exercise without controversy is admissible. |
| Section/Title | Provision | Illustration/Example |
| Sec.50:- Relevancy of opinion as to relationship | 1)When the court has to form an opinion as to relationship between two persons, 2)The opinion of a person on such relationship is relevant on the following conditions:- a) He may be a member of the family of such persons whose relationship is in dispute or he may be an outsider. b) He must have special means of knowledge as to such relationship. c) His opinion must be expressed by conduct. The opinion or belief of a person specially competent in this respect as expressed by his conduct in outward behavior, is relevant. Here the word ‘conduct’ is not necessarily limited to the conduct of the relation of the persons in dispute, but it includes the conduct of the witness who gave his opinion about the existence of such relationship. Proviso:- The proviso to Sec.50 provides that the opinion on relationship can’t be sufficient to prove a marriage 1) in the proceedings under Indian Divorce Act or 2) in the prosecutions for ----- a) bigamy (Sec.494 IPC), b) bigamy with concealment of former marriage from the person with whom subsequent marriage is contracted (Sec.495 IPC), c) adultery (Sec.497 IPC) and d) enticing or taking away or detaining a married woman with criminal intent (Sec.498 IPC). In these cases the fact of marriage must be strictly proved in regular way. |
i) The question is whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. ii) The question is whether A was the legitimate son of B. The fact that A was always treated as the legitimate son of B by the member of the family, is relevant. |
| Sec.51:- Relevancy of grounds of opinion | Whenever the opinion of any living person is relevant, the grounds on which such opinion is based, are also relevant. Opinion is no evidence without assigning reasons for such opinion. The correctness of the opinion can be better estimated if the reasons upon which it is based are known. If the reasons are frivolous or inconclusive the opinion is worth nothing. |
i) An expert may give an account of experiments performed by him for the purpose of forming his opinion. ii) An Excise Inspector is an expert on the question whether a certain liquid is illicit liquor or not. Before he gives his opinion as an expert he has to examine it and has also to furnish the data on which his opinion is based. His bald statement that the contents of the bottles are illicit liquor is not sufficient to prove that fact.[Gobardhan v. State AIR 1959 All 53] |
Conclusion:-
From the above analysis it may be submitted that evidence of an expert is not a substantive piece of evidence. The courts do not consider it conclusive. Without independent and reliable corroboration it may have no value in the eye of law. Once the court accepts an opinion of an expert, it ceases to be the opinion of the expert and becomes the opinion of the court.
The author can be reached at: debaditya_roy.1983@legalserviceindia.com
ISBN No: 978-81-928510-1-3
Author Bio: Completed Bachelor of Laws [5 years] from University of North Bengal in 2006. Started professional career as an Advocate in Dist. & Sessions Court at Jalpaiguri, West Bengal w.e.f.16.05.2006 and thereafter at Hon'ble Calcutta High Court upto March, 2011. Worked as Legal Asstt. in Central Adoption Resource Authority, M/0-Woman & Child Development, Govt. of India at New Delhi. Also worked as Law Officer in Bengal Chemicals & Pharmaceuticals Ltd.(A Govt. of India Enterprise) at Kolkata from March, 2011 to May,2012. Presently working as Dy.Asstt. Director (Police Science) in North Eastern Police Academy, M/o-Home Affairs, Govt. of India, at Shillong, Meghalaya w.e.f. June, 2012.
Email: debaditya_roy.1983@legalserviceindia.com
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